Experts: Harmful changes in the Penal Code, operated by SDP-ALDE and passed by the Constitutional Court. Criminal legislation is relaxed, defendants are favored
Even if they are considered to have a negative impact on criminal investigations, some of the legislative changes introduced by the SDP-ALDE Coalition to the Criminal Code have passed the Constitutional Court filter, experts told G4Media.ro.
For example, by removing an article from an enumeration contained in another article in the Code (a change which is not intelligible to the lay person), the legislation was relaxed in favor of defendants. This is the case of Article 309 concerning particularly serious consequences. By removing Article 297 from the ambit of Article 309, the aggravation in case of abuse of office is abrogated.
The decriminalization of the offense of negligence in office, the reduction in prescription periods, the restriction of the notion of non public information are other examples of amendments to the Penal Code operated by SDP-ALDE, which passed the constitutional filter and by consequence, favor the defendants.
Below, a summary of the main articles posing a problem, which have passed the constitutional filter. See why they are harmful, according to explanations provided to G4Media.ro by expert practitioners.
Problem Article: Article 298 of Penal Code on Incriminating negligence in office was abrogated. In other words, neglect in office was decriminalized.
Explanation by expert practitioners: “With this option introduced by the legislator, a number of officials who, in violation of their duties, or by fault, provoke significant damage to the state budget, or to the budgets of private entities, are no longer held accountable.
For example, a manager who allows other people to access the company’s warehouses without being present, through this action making it possible to steal a ton of copper, or a forest ranger who does not stand guard in the forest, thus allowing the illegal logging of 300 trees, ” practitioners explained to G4Media.ro.
Problem Article: Articles 154 and 155 of the Penal Code were amended and the prescription and special prescription periods were reduced.
Thus, according to the current Penal Code, „The prescription periods for criminal liability are:
b) 10 years, when the law stipulates for the committed offense a punishment of imprisonment of more than 10 years, but not exceeding 20 years;
c) 8 years, when the law stipulates for the committed offense a prison sentence of more than 5 years, but not exceeding 10 years;
According to the SDP-ALDE amendments, „Article 154 (1) (b) and (c) shall be amended to read as follows:
„(b) 8 years, when the law provides for the offense to be punished by more than 10 years of imprisonment, but not exceeding 20 years;
c) 6 years, when the law provides for the offense to be punishable by more than 5 years, but not exceeding 10 years; ”
Explanation by expert practitioners: „The reduction of the prescription period and, in the case of special prescription, the shift to once over (as opposed to twice, as it is today) will make many facts practically unpunishable, given that, since 2014, most of the punishment periods have decreased, although the objective duration of criminal files until final judgment remained the same.
For example, the abuse of office is punishable by imprisonment for up to 7 years. If it is reported to the judiciary within 3-4 years, half of the prescription period has already passed which is up to 6 years after the changes. In the 3 years left, investigators need to establish the material author in order to be able to increase the prescription period by 3 years. If the prosecution lasts for an average of 2 – 3 years, and the preliminary procedure for another year, adding 2-3 years in the first instance, when the appeal is exercised, the deed is prescribed and the defendant will be freed. ”
Problem Article: In the current Penal Code, Article 309 states:
„If the facts provided in art. 295, art. 297, art. 298, art. 300, art. 303, art. 304, art. 306 or art. 307 have caused particularly serious consequences, the special limits of the punishment provided by law are increased by half. ”
In Article 309, modified and passed by CCR, it is stated „If the facts provided in Art. 295, art. 300, art. 303, art. 304, art. 306 or art. 307 have produced particularly serious consequences, the special limits of the punishment provided by the law are increased by a third. ”
Note that Article 297 has been removed from the list in the amended Article 309. Article 297 of the he Criminal Code is the one concerning abuse of office, so as a consequence, the aggravation of abuse of office has been abrogated.
Explanation by experts consulted by G4Media.ro: „By excluding the aggravation criteria if the abuse of service has caused particularly serious consequences, i.e a loss of over 2 million lei, or if the deed was done in order to obtain an undue advantage, the view that the legislator has on these serious deeds changes. It clearly favors political decision-makers.
For example, an administrator who appropriates 3 million lei from a firm will be punished more severely than a tenant who steals10,000 lei, but a county Council President who grants a contract of 3 million lei illegally through abuse of office, will be punished within the same limits as the individuals who illegally grants a 10,000 lei contract, „the experts explained.
Problem Article: In the Criminal Code amended by SDP-ALDE and which passed the Constitutional Court filter, a new Article 187 is inserted, art. 187, index 1, with the following content: „Information not intended for publicity is understood to mean that category of information classified, according to the law, as state or office secrets, which are contained in a document bearing the inscription in this respect, if they have not been declassified legally. „Thus, the notion of non-public information was restricted.
Explanation of the experts for G4Media.ro: „This change will remove from the criminal area situations that can generate serious social repercussions and which up to this moment were incriminated on the basis of art. 12 of Law no. 78/2000.
For example, in the case of a public call for projects/offers, if one gives access to the tender specifications, this will no longer be considered an offense, even if one clearly benefits from it, since the specifications book of the contract are non-public, but not a state secret or an office secret. It will no longer be a criminal offense if you fraudulently pass a license exam, apromotion, etc. because the topics are non-public, but they are not classified as a state secret or office secret, „the experts advised by G4Media.ro explained.
Traducerea: Ruxandra Stoicescu
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